A blog about Northeast energy issues, and in support of nuclear power.

Wednesday, April 16, 2014

The Public Service Board Rewrites History

Pressing Control-H?

A petulant Board says Entergy is not a fair partner.

In granting the Certificate of Public Good (CPG) for Vermont Yankee to operate for a final year, the Public Service Board (PSB) stressed that Entergy had not been a "fair partner" to Vermont. I considered the Board's assertions misleading and petulant.

My recent post on this subject was PSB and the Certificate: Powerless and Petulant. I ended that post with a question: "Well, did the Board have good reason to believe Entergy was not a fair partner? Or were they just being petulant, as I claim?" In this post, I begin to answer that question.

The Board is made up of lawyers who were not under oath ("the whole truth") on a witness stand. They were writing an opinion. Without an oath to tell the truth and the whole truth, they could omit important history from their opinion. And they did.

If you asked an average Vermonter about Vermont Yankee's history, he would probably say something like: "Well, the legislature voted against the plant but then that vote was overturned by the court."

The PSB chose to forget this part of the history.

What the PSB mentioned

Let's look at page 28-29 of the ruling. This is extracted from the rulings history-chronology which is a background to this order. I will summarize a few items, quote a few items (in italics). You can read the rest if you follow the link to the ruling.

10. On March 3, 2008, Entergy VY filed a petition with the Board seeking authority to continue operation of the VY Station for an additional 20 years through March 21, 2032. Docket 7440, Petition of 3/3/08 at 2.55

11. On January 19, 2012, the United States District Court for the District of Vermont issued a decision holding that provisions of Act 160, codified at 30 V.S.A. § 248(e)(2), were preempted by the federal Atomic Energy Act, and enjoined the enforcement of these provisions. Entergy Nuclear Vermont Yankee, LLC v. Shumlin, 838 F. Supp. 2d 183, 243 (D. Vt. 2012),

What the PSB forgot to mention

Did you notice anything missing? The legislature passed Act 160 in 2006 requiring the legislature to allow the PSB to issue a CPG. The Board didn't mention that.

Act 160 was a clear change to the contract that Entergy signed when they bought the plant. That contract said that the PSB had to consider whether the plant deserved a CPG. The original contract said nothing about the legislature. For information on this, I recommend John McClaughry's post: Can Entergy Trust the State?

The legislature took over the decision about issuing a CPG to the plant (by passing Act 160 in 2006). The legislature discussed, at great length, the plant's nuclear safety. However, nuclear safety is a matter of federal jurisdiction, and the legislature knew this. The legislature used what Cavan Stone calls the Control-H defense. Basically, the legislature decided: "Let's use another word for safety." We will hit Control-H and we will change that word. See Cavan Stone's guest post The State and the Control-H Defense.

Having attempted to use other words for "safety," the Vermont Senate held a vote in 2010. This vote denied a CPG to Vermont Yankee-- by refusing to let the PSB rule on a CPG. Essentially, this vote ordered the plant to shut down in 2012.

Entergy then sued the state, because the legislature had acted on the basis of nuclear safety. It is a federal prerogative to regulate nuclear safety. Entergy won that lawsuit. The state appealed, and Entergy won that appeal. This was embarrassing for the legislature, and maybe embarrassing for the PSB.

What the PSB was embarrassed to mention

I can read what the PSB wrote, but why they wrote it is forever a mystery. Here's my opinion.

Governor Peter Shumlin
Led the Senate to vote against VY
(before he was Governor)

Neither the 2006 law nor the 2010 vote are mentioned in the PSB history. Why not? Is it because these show that the state of Vermont was not being a "fair partner"? Is it perhaps because the legislature took the PSB's power away from it? The legislature said: "You can't release your findings, PSB, unless we legislators allow you to do so." To write about this, the PSB would have to admit another example of being powerless. Was that the reason they didn't mention the vote? Or was it that Entergy won the lawsuits, hands-down, and the PSB is basically lawyers who ended up on the wrong side?

Was the PSB just plain embarrassed at the whole history?

Who knows? As I say, the PSB didn't write this opinion under an oath to tell the whole truth, so they wrote what they wanted to write. They left out the part of the history that most Vermonters would mention if asked about the history of Vermont Yankee.

I will be going over other parts of the ruling later: this was just about the history.

The Board admits that Entergy cooperated fully and gave access to the state Nuclear Engineer. That access apparently does not count for much in the Board's eyes, even though most states don't have a "nuclear engineer" I think.

Various organizations wanted full access to Entergy data, including personnel data. These organizations knew that they wouldn't get this data, because Entergy would have been violating various forms of confidentiality. But asking for it gave them a stick for beating Entergy.

People tend to forget that "the Legislature" did not vote down the resolution authorizing the PSB to act on Yankee's application. The Senate voted the resolution down; the House never took it up. Therefore "the Legislature" did not act.

As usual, you are completely correct. Act 160 said the "legislature" had to act. If it didn't act, they basically performed a pocket-veto. By not acting,the law let the legislature shut down the plant by inaction, shielding all members of the legislature from responsibility ("Hey, why you lookin' at me? I didn't even get a chance to vote on it!")

That is indeed what happened, until the lawsuit happened. The Senate voted to shut down the plant, but the House didn't vote at all. Between the two houses, it was a pocket veto of the plant. I tried to distinguish the two areas in my post: the law was about the legislature, the vote was about the Senate.

While I may have muddied the two areas a bit, the PSB order doesn't even mention Act 160 except as reference in a list about the court ruling. The Board was not under oath to tell the "whole truth" so they didn't tell the whole truth. Why not? I don't know. Their omission of a major consideration -- well, this omission detracts from the gravitas of the ruling, to put it mildly.